Court weighs Auerhahn’s fate

A three-judge panel heard arguments this afternoon in a rare lawyer-discipline case against Assistant U.S. Attorney Jeffrey Auerhahn.

In a crowded fifth-floor federal courtroom in Boston, the Office of Bar Counsel urged U.S. District Court Judges Rya W. Zobel, William G. Young and George A. O’Toole Jr. to suspend Auerhahn for at least two years for violating his “constitutional and ethical obligations” by withholding exculpatory evidence during the prosecution of two suspected mobsters in 1993.

A public reprimand would not embrace “the enormity” of the misconduct at issue, Assistant Bar Counsel Nancy E. Kaufman said.

“Unless [the rules] serve as a deterrent, there is no reason for a prosecutor to follow them” she said.

One of Auerhahn’s K&L Gates lawyers, Michael D. Ricciuti, said that, at best, the prosecutor had been negligent in his handling of the mob case.

Ricciuti added that the prospect of a disciplinary sanction against his client would be “career-ending.”

“Whatever the court decides, this will define his 25-year career,” he said.

Ricciuti added that Auerhahn has never had any other disciplinary problems and has been the “model of integrity.”

While Kaufman told Judge Young that she did not believe Auerhahn had suborned perjury as some have suggested, she said his actions were not inadvertent.

“He intentionally did not document [the exculpatory evidence] and intentionally did not disclose it,” she said.

Kaufman said Auerhahn and the trial judge who presided over the mob case, U.S. District Court’s Mark L. Wolf, were in the “midst of a bad relationship.”

Auerhahn was under immense pressure to put the case together, she said. “He wasn’t the first prosecutor to succumb to these pressures, and, unfortunately, he won’t be the last.”

Even though the disciplinary case has been pending for more than a year, the parties involved agreed that it is still unclear what legal standard should apply.

Ricciuti argued that the court should use a clear and convincing standard, while Kaufman said a preponderance-of-the-evidence test was appropriate.